Top Trailers (Pty) and Another v Kotze (1006/2018) [2019] ZASCA 141 (1 October 2019)

Top Trailers (Pty) and Another v Kotze (1006/2018) [2019] ZASCA 141 (1 October 2019)

The Supreme Court of Appeal held that the default judgment was erroneously granted because the respondent's attorneys failed to give proper notice of set down to the appellants' attorneys after the matter became opposed. The court relied on the principle from Lodhi that a judgment granted without proper notice is erroneously granted, regardless of what appears on the record. The procedural rules and practice manual required notice to be served, which was not done. Consequently, the requirements for rescission under rule 42(1)(a) were met, and the appellants were not required to show a bona fide defence. The High Court's refusal to rescind the default judgment was therefore incorrect.

Citation
[2019] ZASCA 141
Parties
Appellant: Top Trailers (Pty) Ltd; Appellant: Sipho Sono NO; Respondent: Johannes Petrus Kotze
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 October 2019
Case Number
1006/2018
Procedural Posture
Civil Appeal / Appeal From High Court Default Judgment Rescission Refusal
Outcome
Appeal upheld; High Court order set aside and replaced with rescission of default judgment.
Judges
Ponnan, Zondi, Molemela, Plasket, Weiner
Legal Topics
Default Judgment, Rescission of Judgment, Business Rescue, Notice Requirements, Uniform Rules of Court, Companies Act
Civil Procedure Commercial and Corporate Default Judgment Rescission of Judgment Business Rescue Notice Requirements Uniform Rules of Court Companies Act

Case Brief

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Parties

Top Trailers (Pty) Ltd

Appellant

Sipho Sono NO

Appellant

Johannes Petrus Kotze

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Default Judgment Rescission Refusal

Legal Issues

  1. 1 Whether the High Court erred in dismissing the appellants' application for rescission of a default order.
  2. 2 Whether the default judgment was erroneously granted in terms of rule 42(1)(a) of the Uniform Rules of Court.
  3. 3 Whether proper notice of set down was given to the appellants after the matter became opposed.

Ratio Decidendi

The Supreme Court of Appeal held that the default judgment was erroneously granted because the respondent's attorneys failed to give proper notice of set down to the appellants' attorneys after the matter became opposed. The court relied on the principle from Lodhi that a judgment granted without proper notice is erroneously granted, regardless of what appears on the record. The procedural rules and practice manual required notice to be served, which was not done. Consequently, the requirements for rescission under rule 42(1)(a) were met, and the appellants were not required to show a bona fide defence. The High Court's refusal to rescind the default judgment was therefore incorrect.

Court Disposition

Appeal upheld; High Court order set aside and replaced with rescission of default judgment.

Orders

  • The appeal succeeds with costs, including the costs of two counsel.
  • The order of the High Court is set aside and replaced with: (a) The application succeeds. (b) The judgment granted by default by the High Court on 27 June 2016 is set aside. (c) The respondent is ordered to pay the costs of the application.